Kwen Ashbelle A.

Cansancio

“The Path of Law”, as Holmes put it, is a study of prediction. It is the process
of eliminating a case’s irrelevant elements, retaining the facts of legal import, and
foreseeing how the court decides. Holmes then presents the principles of this study:
(1) understanding the law’s limits, (2) the growth of law, and (3) jurisprudence.

The article lengthily expounds on the idea that morality, while not absolute,
imports some limits to statutes created; in retrospect, his Bad Man theory counters
the use of the law not governed by morals or ethical considerations but by a general
avoidance of legal repercussions. Holmes’ warning to the readers is that our moral
sense may not be equal to the sense of the Constitution, or even among other
persons. He also states that in the case of civil laws, specifically in “malice,” legal
language may construe differently from our moral definitions.

While I agree with his perspective on the danger of limiting law to resonate
with morality. I firmly stand with how morality also empowers the legislative’s intent
(in the creation) and the judiciary’s application of laws. In the case of Queen vs.
Dudley and Stephens the English jurisprudence stated, "Though law and morality are
not the same, and many things may be immoral which are not necessarily
illegal…the absolute divorce of law from morality would be of fatal consequence;"

Holmes’s other considerations for our “study of prediction and prophecies”

included history (in the development of laws) and jurisprudence. Both I believe, are
not separate from morality. The law’s growth, developments, and amendments are
due to the ever-changing paradigms of society in morals and ethics. What may have
been considered scandalous and immoral in the 1800s may now be socially
acceptable due to the evolving, liberated thoughts of man– or as the article puts it,
“universal interest”. Whereas in jurisprudence, there are unspoken biases in justice
that are in the compass of what may be perceived as moral, just, and true. Hence,
though the difference between morals and the law does exist, they cannot be
separated as divorced schools of thought. While morality may be subjective from
person to person, it is abiding by these strong convictions that truly allows a lawyer
to be a great master in the calling– as a social healers, technicians of power,
institution builders, and custodians of the rule of law; aiming for the rule of justice.

Philosophy of Law JD 106